“HISTORIC” OFFENCES

In a trial relating to historic offences of indecent assault, the judge had rightly allowed a witness, who had witnessed the alleged offences, to give evidence that she has also been inappropriately sexually touched by the appellant. The judge correctly directed the jury that her evidence did not go to propensity, but that it was potentially relevant to an important matter in issue.

A conviction on 15 historic counts of indecent assault was safe despite some unsatisfactory features of the judge’s summing up. The total sentence of fifteen years’ imprisonment was reduced to eight years, to take account of the offender’s advanced age and poor health.

[2016] EWCA Crim 1941

A total sentence of 15 years’ imprisonment together with an extended licence period of one year was appropriate for historic sex offences committed by a 71-year-old man against his three step-grandchildren.

[2016] EWCA Crim 1777

A sentence of 12 years’ imprisonment imposed following guilty pleas to 24 charges of indecent assault on a male, two charges of indecency with a child under 14, one charge of indecent assault on a female under 13 and two charges of perjury, was increased to 18 years where the offender, a priest and former social worker, had committed a catalogue of offences against 11 victims over decades and where his behaviour resulted in one victim giving evidence at two trials.

[2016] EWCA Crim 1988

A sentence of 21 months’ imprisonment imposed on a teacher following his conviction for six counts of engaging in sexual activity while in a position of trust was not excessive where he had groomed a 16-year old pupil and, on six separate occasions, engineered time alone with her in a classroom. Although some of the lasting harm suffered by the complainant might have been attributable to the full consensual relationship which developed after she left school, that relationship arose directly from the teacher’s serious criminality while she was in his care at school.

[2016] EWCA Crim 1553

The Court of Appeal gave additional guidance on the principles to be applied when offenders were sentenced for historic sexual offences.

[2016] EWCA Crim 1388

A sentence of three years’ conditional discharge imposed on a police officer for eight counts of indecent assault committed against his sisters-in-law was not unduly lenient. The offending properly fell within category 3B of the relevant sentencing guidelines as to culpability, as it had not involved an abuse of trust in the sense used in the guidelines.

[2016] EWCA Crim 1762

The concept of abduction in harm category 2 of the sentencing guidelines for rape was not a matter of distance. A sentence of eight years’ imprisonment following a guilty plea to a historic offence of rape was justified where the offender, who had previous convictions for indecent exposure with intent to assault a female, had raped the victim twice in an incident which had caused her lifelong harm.

A 30-year extended sentence comprising a 22-year custodial element and an eight-year licence period was appropriate in the case of a 61-year-old man who had pleaded guilty to 33 child sexual offences committed against three young girls over a 40-year period.

[2016] EWCA Crim 815

A two-year suspended sentence which had been imposed on the offender following his conviction for two offences of indecent assault on young boys, committed when he was 11 and 14, was not unduly lenient.

[2016] EWCA Crim 572

A sentence of eight years’ imprisonment was appropriate in the case of a man who had been convicted of indecently assaulting two young girls in the early 1980s.

[2016] EWCA Crim 2009

A total sentence of eight years’ imprisonment was appropriate for an individual convicted of four counts of historic sexual offences involving a young child. Two of the counts had been part of the same incident and course of conduct and the sentences on those counts were made concurrent rather than consecutive in order to reduce the total sentence.

ECHR art.7 had not been breached where an offender, sentenced in 2014 to life imprisonment for a manslaughter committed 14 years previously, had had his minimum term determined on current sentencing practice rather than the practice of the courts at the time of the offence. Unlike the minimum term for mandatory life sentences for murder which were subject to the statutory regime in the Criminal Justice Act 2003, the calculation of the minimum term in discretionary life sentences for manslaughter was an exercise in judicial discretion.

[2015] EWCA Crim 1426

An immediate 15-month custodial sentence imposed on a 68-year-old man in respect of offences of incest and indecent assault which he had committed against his younger sister when aged 15 was replaced with a community penalty. The judge had been misled by not being referred to the relevant guidelines for sentencing youths, and he had not been justified in imposing a far harsher sentence than would have been imposed if the offender had been a 15-year-old boy at the time of sentencing.

[2015] EWCA Crim 1501

A total sentence of 16 years’ imprisonment was increased to 20 years where a judge had been wrongly advised that his sentencing powers in relation to offences of buggery committed when the offender was under 18 were limited to 12 months’ imprisonment.

[2015] EWCA Crim 1330

In a criminal case concerning historical sexual offences, the judge had not favoured the prosecution in his directions to the jury, and the appellate court was not left with any sense of unease about the safety of the convictions.

[2015] NICA 43

A sentencing judge had erred in passing sentence for historic offences of indecent assault by referring to a notional sentencing guideline with a starting point midway in the statutory range at the time of the offence rather than adopting the current starting points and the relevant sentencing ranges, subject to the earlier statutory maximum.

[2015] EWCA Crim 1538

It had not been an abuse of process to prosecute an elderly man for an historic offence of sexual assault which had been committed against a seven-year-old family member. The 23-year delay between the offence and trial did not of itself justify a stay of prosecution, and the judge had been entitled to determine that the offender, who suffered from dementia and other physical ailments, was fit to plead and stand trial.

An individual had been incorrectly convicted of a historic offence of rape against a family member because, at the relevant time, anal penetration did not constitute that offence under the Sexual Offences Act 1956 s.1. It was appropriate to substitute an alternative conviction for indecent assault, as the facts fell within the scope of s.14(1) of the 1956 Act, and the test set out in R. v Graham (Hemamali Krishna) [1997] 1 Cr. App. R. 302 was satisfied.

[2014] EWCA Crim 2362

Not guilty verdicts returned by a jury in respect of two of five counts of historic indecent assault did not demonstrate that the judge’s refusal to stay the prosecution on the ground of abuse of process due to delay and the consequent loss of evidence was mistaken, or that the verdicts were illogical or in any other way unsafe.

[2014] EWCA Crim 2079

The court granted leave to prefer a voluntary bill of indictment under the Administration of Justice (Miscellaneous Provisions) Act 1933 s.2(2)(b) against the defendant, Gary Glitter, on counts of alleged historic sex abuse. Acknowledging the exceptional nature of its decision, the court held that it was in the interests of justice, and the defendant would not be denied a fair trial by reason of delay.

[2014] EWHC 3307 (QB)

A suspended sentence for seven offences of indecent assault on step-siblings of a very young age, carried out over a protracted period some twenty years earlier, had not been unduly lenient. The interruption to the offender’s treatment programme that an immediate custodial sentence would cause, and the potential resulting exacerbation of the situation, amounted to an exceptional circumstance justifying the suspended sentence under the Powers of Criminal Courts (Sentencing) Act 2000 s.118.

[2014] EWCA Crim 1933

A sentence of 10 years’ imprisonment imposed for 23 counts of child cruelty contrary to the Children and Young Persons Act 1933 s.1(1) between 1982 and 2000 could not stand in relation to offences committed prior to September 29, 1988 when the maximum sentence was two years’ imprisonment.

[2014] EWCA Crim 1442

New evidence as to a complainant’s reliability and truthfulness, which was not disclosed at the trial in 2001 of a man charged with indecently assaulting under-age children and attempted buggery of an under-age boy when he worked at children’s homes in the 1970s, would not have affected the safety of his convictions even if it had been admissible.

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[2014] EWCA Crim 457

A confession which had been relied upon to secure a murder conviction 37 years earlier had been reliably obtained in accordance with police investigation procedures in force at the time. The fact that the police officers involved in the investigation had since acquired bad character did not affect the safety of the conviction either; it was not an invariable rule that evidence of misconduct post-trial in which the integrity of the officer was impugned inevitably led to a successful appeal.

[2013] EWCA Crim 2587

An offender’s convictions for historic offences of rape, buggery, attempted rape, indecent assault and murder were deemed safe, as the judge had given the jury adequate directions as to the dangers of delay and its effect on the evidence.

[2013] EWCA Crim 2398

A 30-year delay on the part of a complainant did not render an offender’s convictions for indecent assault, indecency with a child, and rape unsafe as the judge had sufficiently dealt with any prejudice to the offender in his summing up and directions to the jury and there had been other evidence that supported the complainant’s evidence.

The court declined to re-open a Court of Appeal decision that a judge had erred in granting, pre-trial, a stay of criminal proceedings relating to historic sexual abuse charges. The defendant had not appealed against the decision but sought to challenge it on the basis that it had been overtaken by subsequent authority. The court had difficulty in accepting that such a challenge could properly be brought, and did not wish to encourage similar challenges in comparable situations.

[2013] EWCA Crim 1850

A sentencing judge had been entitled to refuse to adjust a sentence for newly discovered offences of indecency with a child by reference to what the overall sentence would have been had all the circumstances been known during an earlier sentencing exercise for similar offences where the offender had chosen not to disclose the extent of his offending.

Although the delay in the appellant’s prosecution for historic sexual offences was extreme, the resulting missing evidence was not of a degree of cogency that could amount to a finding of serious prejudice in its absence. The trial judge had given the jury appropriate directions regarding the effect of the delay and the appellant’s convictions were safe.

A sentence of 15 months’ imprisonment imposed for 14 historic indecent assaults was unduly lenient and was increased to one of 30 months. Even though the offender, a highly regarded television and radio presenter with no previous convictions, was 83 years old, in poor health, and had not offended for over 25 years, the original sentence did not reflect the offences’ criminality given their lifelong impact on the victims and public concern over sexual crimes against children and young victims.

[2013] EWCA Crim 1450

In the course of a trial for the indecent assault of a young girl, evidence of the complainant’s demeanour had been admitted without it having been established that it was linked to the abuse she alleged. While the jury should have been clearly directed that that evidence did not confirm what she alleged, the absence of such a direction did not render the conviction unsafe.

[2013] NICA 34

A judge had correctly directed a jury on the issue of doli incapax that they could look at the circumstances surrounding historic sex offences to assist them in their assessment of whether a 13-year-old boy had been aware that his acts were seriously wrong.

[2013] NICA 23

Whilst some elements of a total sentence of eight years’ imprisonment for 11 historic sex offences were unlawful, because they exceeded the maximum sentence at the date when the offences were committed, the total sentence was appropriate. The unlawful elements were reduced but others were extended to maintain the eight-year total, pursuant to court’s power under the Criminal Appeal Act 1968 s.11(3), since the offender was not, overall, dealt with more severely.

It had been open to a jury to be satisfied on the evidence that alleged historic child sexual abuse had continued into the period on the indictment. It was not open to the Court of Appeal to review the evidence and come to a different conclusion.

[2013] EWCA Crim 124

Although the judge had erred by not applying current sentencing practice when sentencing the appellant for offences of rape and indecent assault committed in 1999, the sentence of 12 years’ imprisonment which he had imposed could not be criticised.

[2012] EWCA Crim 2668

A sentence of 15 years’ imprisonment imposed for 12 counts of committing indecent assault was reduced to 12 years in the light of the maximum sentence for each offence, the sentencing guidelines, the offender’s age and disability, and the fact that for a historic offence he would serve two-thirds of his sentence in custody.

[2012] EWCA Crim 2599

A sentence of two years’ imprisonment for an offence of wounding with intent where the victim was slashed in the face with a knife was unduly lenient and a sentence of three years’ imprisonment was substituted.

[2012] EWCA Crim 2391

A conviction for murder following a trial 15 years after the victim’s death was not unsafe where the outcome of the case depended on a careful assessment of the reliability and credibility of three main witnesses’ evidence which was a task for the jury who had received the appropriate directions from the judge.

[2012] NICA 27

In light of a number of propositions derived from authority that should be considered on an application for a stay of proceedings, on the ground of abuse of process due to delay, there was in the circumstances no ground for regarding a conviction as unsafe by reason of the judge’s refusal to grant a stay of proceedings.

[2006] EWCA Crim 756

The absolute discharge of a mentally-impaired defendant following convictions for indecent assault committed many years in the past was unduly lenient in that it failed sufficiently to take into account the interests of the victims.

[2005] EWCA Crim 246

An eight-year sentence was unduly lenient for two offences of rape where the victim was a child who had been in a position of trust vis-à-vis the offender. A three-year community rehabilitation order was unduly lenient for offences of indecent assault and indecency with a child. A six-month sentence coupled with an extended licence period of two years was unduly lenient for three counts of indecent assault against a child.

[2003] EWCA Crim 5